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Sentence The Crime Or The Criminal?

At the New York Times Room for Debate, the issue on the table was “Sentencing and the ‘Affluenza’ Factor,” which baits the question from the outset with the “affluenza” silliness that was a creation of the media rather than a rationale adopted by the court.

This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence. A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.

The case has angered many who have said that a poor person would have been imprisoned, without the same considerations. To what extent should life circumstances affect sentencing?

Despite the nuance of the question, “to what extent should life circumstances affect sentencing,” the responses for the most part fell for the false dichotomy of either sentencing for the crime or sentencing for the criminal. There was the Dersh, who used this as an opportunity to promote his book so he can pay off his Sutton Place townhouse, straddling both sides of the question:

These abuse excuses ranged from “parental alienation syndrome,” to “premenstrual stress syndrome,” to “black rage,” to “Twinkie defense,” to “Holocaust survival syndrome.” Some, such as “battered woman syndrome,” proved to be real while others, such as “Super Bowl syndrome,” turned out to be contrived.

There can be no real doubt that the same criminal act can carry different levels of culpability depending on the circumstances of the accused.

So there can be no real doubt? Except:

But what about the more typical case in which the criminal claims that his upbringing contributed to his criminality and should mitigate his punishment?

A heavy burden should be placed on any such claim because we expect all citizens to exercise control over their impulses. If the poor and the rich want to be deemed equal before the law, we have the right to demand that they equally obey the law, even if the pressures to do so may vary from individual to individual.

Thanks for clearing that up, Dersh. Where can I buy your book again? Never mind.

But to put it simply, yes, life circumstances should absolutely influence sentencing. But that doesn’t mean money or wealth should have any influence. In cases where the judge is allowed to consider mitigating circumstances, he or she will consider a defendant’s personal situation and history. The court can, and should, consider a person’s criminal history or lack thereof, the need for mental health or substance abuse treatment, the age of the defendant, the remorse shown and willingness to cooperate with the investigation, to name a few legitimate circumstances.

So yes, “absolutely,” life circumstances should serve to dictate sentence? Okay, but then:

Unfortunately, in some cases when the defendant (or his or her family) is wealthy, the access to treatment programs or the ability to pay restitution is going to work in his or her favor when those are circumstances considered by the court in determining a sentence.

I think most criminal defense attorneys would agree that you can go next door to another courtroom, overseen by another judge yet housed in the same courthouse, and get a completely different sentence for the same criminal offense. But to take away all discretion from the courts is not the answer to eliminating what appears to be preferential sentencing.

So “absolutely” or not really? Somewhat ironically, in that her clients won’t, by definition, come from the wealthy and advantaged families that others say gain undue advantage, Alameda County Public Defender Aundrea Brown picks a side:

A system that deliberately ignores the plight of the accused perpetuates problems in society. If a court only sanctions criminal behavior without addressing its root causes, large rates of recidivism will be sure to follow.

An effective sentencing is one that considers the victim, as well as the defendant’s age, maturity, mental capacity, education or lack thereof, victimization, sexual abuse and/or substance abuse.

But the most nuanced response, much to my surprise, came from Cooley law school prof, and former chief of the criminal division of the U.S. Attorney’s Office for the Eastern District of Michigan, Alan Gershel:

A just sentence is a proportionate sentence. That is, a sentence that is appropriate to the offense, taking into account a multitude of discrete factors, including a person’s life circumstances. A good judge does not have a linear sentencing philosophy. Judges sentence people, not robots, and every case presents with its own unique facts and circumstances.

Within these two competing philosophies exist several sentencing theories, which are not necessarily compatible with each other. This includes the public’s and the victim’s demand for retribution (“just deserts”), incapacitation (if appropriate), deterrence, both specific and general, and rehabilitation. In weighing and evaluating these goals a relevant part of the sentencing calculus should include a person’s life circumstances regardless of where he or she may fall on the socioeconomic scale. However, it should not be at the expense of proportionality especially when the crime is particularly serious. Unfortunately, the voices of victims, as well as the impact a particular crime may have had on the public’s legitimate need to feel secure sometimes gets lost in the debate.

While our views as to the extent of victim impact differ, Gershel hit the nail on the head by recognizing the key word of proportionality. Inherent in that concept is that it accounts for all legitimate factors, from the impact of a crime on society to the individual mitigating factors that inform a judge as to the efficacy of a sentence in any individual case.

In a sense, they’re all right, except Dershowitz, who said nothing of value, by raising concerns about sentencing, including the advantages of wealth in the system contrasted with the needs of the poor that go unmet and unconsidered, not because they aren’t there but because they were inadequately presented to the court.

At the same time, the desire for some level of equivalence in sentencing is what gave rise to the Sentencing Guidelines, which proved to be a massive failure for their inflexibility to address individualized crimes and defendants. Not all murders are the same, and not all murderers are the same. People just don’t pigeonhole as easily as some might want to create a system that treats everyone “equally,” as equally turns out to be ridiculously disparate given disparate situations. See how that works?

To the extent there is, or can be, an overarching guiding principle that encompasses the competing values of individualized sentences versus retribution, it’s proportionality. And sadly, it’s the must subjective and difficult commodity to find in a criminal sentence. And lest anyone place the blame for its absence only on the judge, it’s the job of the advocates to persuade the court as to where the proper balance of proportionality lies.

But please, never use the word “affluenza” again. If you’re completely out of ideas, try something with greater credibility, like the “twinkie defense.”

I may or may not share this view with professionals, but I’ve often thought about the justice system and have concluded that any effective justice system (one that prioritizes reducing crime, potentially at the expense of justice) must achieve 4 different goals: deter non-criminals from entering the system, keeping released criminals out, ameliorating the suffering of victims, and inflicting as little harm on society as possible.
Under this framework, merely “sentencing the crime” would help make victims feel better and potentially chill especially cynical potential-criminals (who otherwise might calculate that at trial they could spin/buy an effective “sob story”), but the costs of doing so depend on what mitigating factors are considered (in an ideal system). Imprisonment imposes tremendous costs to society (real, actual harm is done to inmates, their friends and family, and even the person who would’ve employed them had they never been sent to prison), and these costs might even outweigh them for certain subsets of the population, such as the young (after all, teenagers have poor impulse control and jail time is arguably a poor deterrent for them) and maybe substance abusers (going “cold-turkey” doesn’t work for everyone). I suspect that discussing how whether we should “sentence the criminal” is only meaningful if we also explain what factors we would consider. Wealth (especially wealth by the proxy of better representation) probably isn’t a good one.

The infamous Dersh Factor: If you cannot dazzle them with your intellect,
you snow them with your ____ ____.
The Dream Team was really the Nitemare Team: The CDLs from Hell.
Let’s be “honest”!?!
Shame on Harvard Law for hiring him,… and then keeping him onboard.
The more things change, the more Dersh stays the same. We water-people
have had enough. I think his wife loves him. That is a plus. If ever there was
a lawyer with a “mouth”?… Ha. Gotta luv him!

As a taxpayer and a citizen, I want a system that reduces crime in the first place. I want a system that rewards public employees for low crime rates, instead of one that rewards arrests and convictions, and therefore provides perverse positive reinforcement for maintaining a certain level of ongoing crime..

I don’t want a system that tries to reduce sentences by presenting evidence that a defendant’s past was so messed up that it’s not reasonable to expect him to observe social conventions. If he’s that messed up, maybe it’s not right to put him somewhere he will be miserable, but he doesn’t belong on the streets, either. But most of those sociopaths could have been identified as schoolchildren. Many were stabbing their brothers and torturing their pets –or they were the victims of parents or siblings doing those things to them — back when they were little. We should be providing a broad spectrum of intensive treatment options to try to give those kids a chance to grow up to be normal. Currently, it’s the exception rather than the rule, even when kids are receiving the standard treatment available to foster kids through medical assistance. But affluent parents do seem to be able to get better results if they are good at advocating for their kids, because they don’t have to wait years for their kids to be evaluated, and because they can afford weekly therapy sessions scheduled at hours that don’t pull their kids out of school.

When kids are dealing with trauma that puts them at risk of growing up to be sociopaths, taxpayers have to pay one way or the other, so I’d rather choose the path that doesn’t involve people being beyond help before we are willing to spend money on them.

Scott H. Greenfield

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SHG